Clark v. State

Indiana Court of Appeals

Clark v. State

611 N.E.2d 181, 1993 Ind. App. LEXIS 289, 1993 WL 88392

CourtIndiana Court of Appeals

DecidedMarch 30, 1993

Docket49A05-9210-CR-361

StatusPublished

Cited by11 cases

This text of 611 N.E.2d 181 (Clark v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. State, 611 N.E.2d 181, 1993 Ind. App. LEXIS 289, 1993 WL 88392 (Ind. Ct. App. 1993).

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Opinions

BARTEAU, Judge.

Kevin Clark appeals his conviction of operating a vehicle while intoxicated. The sole issue on appeal is whether there is sufficient evidence that Wilson "operated" a vehicle. We conclude that the evidence is not sufficient and reverse.

FACTS

At approximately 8:80 in the morning, Marion County Sheriff's Deputy Kevin Newman was dispatched to investigate a man sleeping in a car at the Port O' Call apartment complex. When Deputy Newman arrived, he observed a sleeping Clark sitting in the driver's seat and leaning toward the passenger door. The engine was running, the car lights were on, and the transmission was in "park." The car was sitting in a parking spot with the front end of the car in the roadway going through the apartment complex. After several attempts, Deputy Newman was able to rouse Clark.

DISCUSSION

To sustain a conviction for operating while intoxicated, it is not sufficient for the State to show that the defendant merely started the engine. Mordacq v. State (1992), Ind.App., 585 N.E.2d 22, 24. There must be some evidence to show the defendant operated the vehicle. Id. Where the defendant has been found asleep with the engine running and the car is parked in a parking lot, this court has held that the evidence is not sufficient to show the de[182]*182fendant has operated the vehicle. See Id.; Corl v. State (1989), Ind.App., 544 N.E.2d 211; Hiegel v. State (1989), Ind.App., 538 N.E.2d 265, trans. denied. To the contrary, where the defendant has been found asleep with the engine running and the car is sitting in a traffic lane or other travel portion of the roadway, this court has held that the evidence is sufficient to infer the defendant has operated the vehicle. See Traxler v. State (1989), Ind.App., 588 N.E.2d 268; Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257. Similarly, the facts were sufficient where the defendant was found in a car with the engine running and the car had been driven into a snowbank on the median of a highway. Garland v. State (1983), Ind.App., 452 N.E.2d 1021.

The State urges that this case is controlled by Trazler, Rose and Garland because the front end of Clark's car was protruding into the roadway. We do not agree. In essence, Clark's car was parked in a parking space, however inartfully. There are no facts from which the fact-finder could infer that Clark operated the car while intoxicated. The facts here are much closer to those in Mordacq, Corl and Hiegel. Therefore we reverse Clark's conviction.

REVERSED.

ROBERTSON, J., concurs. SHARPNACK, C.J., dissents with opinion.

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BARTEAU, Judge.

Kevin Clark appeals his conviction of operating a vehicle while intoxicated. The sole issue on appeal is whether there is sufficient evidence that Wilson "operated" a vehicle. We conclude that the evidence is not sufficient and reverse.

FACTS

At approximately 8:80 in the morning, Marion County Sheriff's Deputy Kevin Newman was dispatched to investigate a man sleeping in a car at the Port O' Call apartment complex. When Deputy Newman arrived, he observed a sleeping Clark sitting in the driver's seat and leaning toward the passenger door. The engine was running, the car lights were on, and the transmission was in "park." The car was sitting in a parking spot with the front end of the car in the roadway going through the apartment complex. After several attempts, Deputy Newman was able to rouse Clark.

DISCUSSION

To sustain a conviction for operating while intoxicated, it is not sufficient for the State to show that the defendant merely started the engine. Mordacq v. State (1992), Ind.App., 585 N.E.2d 22, 24. There must be some evidence to show the defendant operated the vehicle. Id. Where the defendant has been found asleep with the engine running and the car is parked in a parking lot, this court has held that the evidence is not sufficient to show the de[182]*182fendant has operated the vehicle. See Id.; Corl v. State (1989), Ind.App., 544 N.E.2d 211; Hiegel v. State (1989), Ind.App., 538 N.E.2d 265, trans. denied. To the contrary, where the defendant has been found asleep with the engine running and the car is sitting in a traffic lane or other travel portion of the roadway, this court has held that the evidence is sufficient to infer the defendant has operated the vehicle. See Traxler v. State (1989), Ind.App., 588 N.E.2d 268; Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257. Similarly, the facts were sufficient where the defendant was found in a car with the engine running and the car had been driven into a snowbank on the median of a highway. Garland v. State (1983), Ind.App., 452 N.E.2d 1021.

The State urges that this case is controlled by Trazler, Rose and Garland because the front end of Clark's car was protruding into the roadway. We do not agree. In essence, Clark's car was parked in a parking space, however inartfully. There are no facts from which the fact-finder could infer that Clark operated the car while intoxicated. The facts here are much closer to those in Mordacq, Corl and Hiegel. Therefore we reverse Clark's conviction.

REVERSED.

ROBERTSON, J., concurs. SHARPNACK, C.J., dissents with opinion.

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611 N.E.2d 181, 1993 Ind. App. LEXIS 289, 1993 WL 88392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-indctapp-1993.

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